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Custer v. State4/9/2004
Gilbert Ralph Custer appeals the sentence he received when the superior court revoked his felony probation for the fourth time in case number 2KB-99-276 Cr and sentenced Custer to serve all of his remaining suspended jail time: 38 months. With the imposition of these 38 months' imprisonment, Custer has now been sentenced to a total of 5 years to serve - the maximum sentence - for the offense of third-degree assault.
Custer contends that this sentence violates the sentencing rule announced by this Court in Austin v. State, and now codified in AS 12.55.125(k)(2): the rule that, in the absence of aggravating factors (as defined in AS 12.55.155(c)) or extraordinary circumstances (as defined in AS 12.55.165), a first felony offender should not receive a term longer than the presumptive term established by the legislature for a second felony offender convicted of the same offense. Custer also contends that his sentence is excessive because, even though his probation has been revoked a total of four times, the conduct underlying these four revocations has not involved serious criminality.
For the reasons explained here, we conclude that the superior court was not clearly mistaken when it imposed the 38-month sentence.
Facts Relating to Custer's Two Underlying Convictions
Even though Custer has appealed only his sentence in case number 2KB-99-276 Cr, it is impossible to assess the propriety of that sentence without considering Custer's sentence in a companion case, number 2KB-99-367 Cr. Superior Court Judge Richard D. Savell had both of these cases before him when he imposed the sentence that Custer now appeals (the sentence in case 99-276).
In 1999, Custer was convicted of two separate felonies: one count of third-degree assault that arose from an incident in May 1999, and another third-degree assault that arose from an incident one month later. Both crimes involved acts of significant domestic violence that Custer inflicted on L.C., the mother of his child.
In case number 2KB-99-276 Cr, Custer was convicted of third- degree assault for kicking down the door of L.C.'s house, beating her, and then trying to strangle her with a noose that he fashioned from electrical cord. This assault occurred on May 1, 1999.
A month later, on June 2nd, Custer was charged with attempted murder in case number 2KB-99-367 Cr after he again broke into L.C.'s home, stabbed her with a kitchen knife, and then beat her with a piece of firewood. This charge was later reduced to third-degree assault.
On June 27, 2000, Custer was sentenced for both of these felony assaults. In each case (99-276 and 99-367) he received a sentence of 5 years' imprisonment with 4 years suspended - 1 year to serve.
Custer denies that he committed either crime. He asserts that L.C. lied about both incidents.
Custer's Criminal History Before He Committed These Two Felony Assaults
Before Custer went to prison for these felony assaults, he had accumulated a lengthy history of alcohol-related crimes, both violent and non-violent. Between 1981 and 1998, Custer was convicted of the following misdemeanor offenses:
Offense Number of Convictions
escape seven
fourth-degree weapons misconduct six
fourth-degree assault four
driving while intoxicated five
resisting arrest three
criminal trespass one
criminal mischief (damage to property) two
disorderly conduct four
Custer's conduct while on felony probation
During the time that Custer was on felony probation, the S
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